Budulica v Budulica

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SUPREME COURT OF QUEENSLAND

CITATION:

Budulica v Budulica [2017] QCA 161

PARTIES:

SLAVICA BUDULICA (also known as Sylvia Budulica)
(appellant)
v
STANISLAV BUDULICA (also known as Stan Budulica) as executor of the estate of the late KATICA BUDULICA (also known as Kaja Budulica and Kata Budulica), deceased
(respondent)

FILE NO/S:

Appeal No 9153 of 2016
SC No 5632 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2016] QSC 184

DELIVERED ON:

28 July 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2017

JUDGES:

Morrison and McMurdo JJA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – PROCEDURE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – GENERAL PRINCIPLES – where the appellant applied for further provision out of an estate – where the appellant’s application was made out of time – where the trial judge refused the appellant’s application for a direction that the Court hear and determine the application – whether the trial judge made some error in exercising the discretion

Succession Act 1981 (Qld), s 41(8)

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

COUNSEL:

The appellant appeared on her own behalf
A Fraser for the respondent

SOLICITORS:

The appellant appeared on her own behalf
Mitchells Solicitors for the respondent

  1. MORRISON JA:  I have read the reasons of Dalton J and agree with those reasons and the order her Honour proposes.

  2. McMURDO JA:  I agree with Dalton J.

  3. DALTON J: This is an appeal from a discretionary decision not to allow the hearing of an application for further provision out of an estate in circumstances where the proceeding was not instituted within nine months after death – s 41(8) of the Succession Act 1981. In order to succeed on such an appeal the appellant must demonstrate error of the type described in House v The King:

    “It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”[1]

  4. The application for family provision was made on 10 June 2015, just over 18 months after the death of the appellant’s mother.  The appellant was…

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Details
Case
[2017] QCA 161
Decision Date

CaseChat Overview and Summary

The appeal by the appellant, Sylvia Budulica, against the decision of the trial judge to refuse to hear her application for further provision from her deceased mother’s estate was dismissed with costs. Sylvia and her brother, Stanislav, were the equal beneficiaries under their mother Katica’s will. Sylvia’s application for further provision was made out of time, outside the nine months allowed by s 41(8) of the relevant statute. The primary judge refused Sylvia’s application for a direction that the Court hear and determine the application. The appeal was based on whether the trial judge made some error in exercising the discretion.

The court considered the general principles applicable to applications for an extension of time in making an application for further provision. The court noted that Sylvia had consulted solicitors and taken advice from them and senior counsel, and had decided not to commence a proceeding within the time allowed by s 41(8). The court held that the trial judge did not make some error in exercising the discretion to refuse to hear the application. The court found that Sylvia had acted on the advice of her legal representatives and that the application was made out of time.

The court dismissed the appeal with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant is one of two children. Her mother, Katica, was married to Stanko in 1962. Stanko died on 1 January 2001. Katica made a will in December 2000. It provided that the appellant and her brother, Stanislav (called Stan) were to share in the estate, in equal shares.Appellant’s Decision not to make an Application within Time One of the matters which weighed heavily in the discretion of the primary judge was that, within the nine months allowed by s 41(8), the appellant consulted solicitors and took advice from them, and from senior counsel retained on her behalf. The primary judge concluded that the appellant acted on that advice and decided not to commence a proceeding. The relevant part of the judgment below is as follows:“Further provision claim contemplated[9]Within months of Katica’s death, Sylvia had retained a solicitor, Ms Chatterton, the principal of SKC Lawyers, to advise her concerning her mother’s estate.[10]In March 2014, Ms Chatterton told Sylvia that any family provision application needed to be filed within nine months of Katica’s death.[11]On 28 March 2014, Ms Chatterton wrote to Stan, as executor of Katica’s estate, notifying Sylvia’s intention ‘if a settlement cannot be reached, to commence proceedings for an order for provision’ under the Act; asking for a copy of the will as well as for details of the assets and liabilities of the estate ‘to enable our client to assess their (sic) position prior to commencing proceedings’ for such further provision; and proposing that no distribution take place pending resolution of Sylvia’s claim.[12]Stan retained Keith Mole and Associates as his solicitors.[13]By letter dated 4 April 2014 to SKC Lawyers, Mr Mole provided a copy of the will; recorded Stan’s instructions concerning estate assets and their values; said that the major assets are two properties; and mentioned Stan’s proposal that Sylvia accept one of those properties as her share of the estate. One of the properties was at 76 Barton Road, Hawthorne; the other at 92 Stuart Street, Bulimba. Each had an estimated value of approximately $1M, according to Mr Mole’s letter. Other estate assets were said to be of relatively little value.[14]Mr Mole’s letter asked Ms Chatterton to say why Sylvia claimed that ‘improper provision’ had been made for her by the will; what she was seeking; and the rationale for her claim.[15]The letter sought a reply within a fortnight. There was to be no response for five months.Advice of counsel[16]In August 2014, Ms Chatterton told Sylvia that her prospects of success in litigation seeking further provision out of Katica’s estate were not good.[17]A few weeks later, Sylvia met with Ms Chatterton and participated, by telephone, in a conference with senior and junior Counsel about those prospects. The barristers were not encouraging. Ms Chatterton’s letter to Sylvia two days after the conference confirms:‘…that there are no grounds (either moral or legal) to make a claim…in the form of a Family Provision Claim…This is because there are two properties contained in your Mother’s Estate with an estimated value of $1,000,000 each and your brother, as Executor…has offered to transfer to you one of those properties.’[18]The letter reveals that Sylvia had consulted SKC about litigating other claims against her brother. One related to property at 17 Jamieson Street, Bulimba. In late 1986, Stanko and Stan were registered as proprietors, as joint tenants, of that property. By right of survivorship, Stan became sole proprietor on Stanko’s death. Sylvia, however, would not accept that she has no interest in 17 Jamieson Street and wanted Stan to transfer a half share in it to her. Ms Chatterton’s letter records that:‘… your father’s intention with respect to this property was that his share of the property would transfer to his wife, your mother…upon his death and that upon your mother’s passing, her share would be transferred to you so that each of yourself and your brother…held a one half share in this property.This is the property which you wish to make a claim against Stanislav so that a one half share of same is transferred to yourself as was your father’s intent.’[19]Ms Chatterton’s letter continued:‘As discussed, our advices to you are as follows:-●With respect to your mother’s estate, we advise you to accept the property situated at 76 Barton Road, Hawthorne as your one half share of the Estate.…●In the event that you wish to proceed in an application with regard to property currently held by your brother, namely 17 Jamieson Street, Bulimba, then such Application can be funded by the sale proceeds from the property obtained by you from your mother’s estate. We confirm the advices provided to you by both this office and the barristers that such an Application will be complex and there is no guarantee whatsoever that your proposed Application will be successful.As has been explained to you previously, your brother, as Executor of your mother’s Estate, is able to disburse the Estate pursuant to the terms of the last Will of your mother 9 months after her death which, by our calculations, will be the 9 September, 2014. Any Application under the Succession Act for a Family Provision Claim to prevent such disbursement will need to be made prior to this date. However, as advised above, it does not appear that in all of the circumstances with respect to your mother’s Estate that you have any grounds to make such an Application.To move this matter forward please provide your signed instructions to accept 76 Barton Road, Hawthorne as your benefit from/share of your mother’s Estate and provide those written instructions to this office prior to 12 noon on Friday 5 September, 2014 to enable us to have sufficient time to then correspond with the Estate’s solicitors to advise that you are accepting their client’s offer of that property as set out in their letter of the 4 April, 2014.As you are aware, due to the complexity of your proposed Application against your brother with respect to 17 Jamieson Street, Bulimba you will need to fund such Application as all barristers whom I have contacted have advised that they are not prepared to take the matter on a speculative basis as realistically such an Application could take some time (several years) to be resolved. We would suggest that once you have had 76 Barton Road, Hawthorne transferred to yourself that you could perhaps then sell that property to fund such proposed Application.’[20]Sylvia gave her written instructions that she would accept the property at 76 Barton Road as representing ‘my one-half share of the net assets of the Estate…’. The next day, Ms Chatterton wrote to Mr Mole, conveying those instructions, asking that ‘the necessary transfer and acceptance documents’ be provided ‘as soon as possible’. This letter made no mention of a family provision claim.Decision not to sue[21]A few days later, the nine month limitation period imposed by s 41(8) expired without a family provision claim having been instituted.[22]Sylvia had acted on the advice of her barristers and solicitor that such a claim would not succeed and decided not to commence such a proceeding.” (footnotes omitted)

Ratio Decidendi

Legal Principle Established

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